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Chand v State [2013] FJCA 145; AAU0065.2011 (25 February 2013)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

CRIMINAL APPEAL NO: AAU0065 OF 2011
(High Court Case No. HAC050/10Ltk)

BETWEEN:

SACHEND CHAND
Appellant

AND:

THE STATE
Respondent

Coram : Goundar JA
Counsel : Appellant in person
Mr. V. Perera for the Respondent

Date of Hearing : 24 February 2014
Date of Ruling : 25 February 2014

RULING

[1] Following a trial in the High Court at Lautoka, the appellant was convicted of rape and sentenced to 16 years' imprisonment. The sentence was imposed on 3 June 2011. The appellant filed an appeal against conviction and sentence, but when the matter came before this Court for leave hearing, the appellant told the Court that he wished to proceed with appeal against sentence only. Since the appellant is unrepresented and was convicted of a serious offence, I proceed to consider leave for both conviction and sentence pursuant to section 21(1) of the Court of Appeal Act.

[2] The appellant presents two complaints against his conviction. His first contention is that his confession made under caution was obtained involuntarily. His second contention is that the victim's grandmother who holds a grudge against him concocted the allegation of rape against him.

[3] At trial the appellant was represented by Legal Aid Counsel. Counsel took objection to the admissibility of confession on the ground that the police assaulted the appellant in order to obtain his confession. The learned trial judge held a voir dire to determine the objection and found the prosecution had proved beyond reasonable doubt that the confession was voluntarily made by the appellant.

[4] The appellant has failed to establish any arguable basis to disturb the trial judge's finding in the voir dire. After admitting the confession the learned trial judge gave careful directions to the assessors as to how to weigh the confession in light of the allegation put forward by the appellant against the police officer who obtained the confession from him. This ground is not arguable.

[5] The appellant's second complaint that the victim's grandmother concocted the rape because she held grudge against him was put to the assessors by the trial judge. The assessors did not accept that the rape was concocted but believed the victim's testimony and found the appellant guilty. The trial judge accepted the guilty opinions and convicted the appellant. The appellant has failed to show any arguable basis to disturb the conviction. This ground is not arguable.

[6] Leave to appeal against conviction therefore must fail.

[7] The appellant's sole complaint against his sentence is that it is harsh and excessive.

[8] The learned judge gave detailed reasons for the sentence that was imposed on the appellant. One matter that is of concern is the manner in which the learned judge dealt with the starting point and the aggravating factors. In the present case, the learned judge picked up a term that was beyond the term of 10 years for rape of a juvenile girl by a person in breach of trust as recommended by the Full Court in Asesela Drotini v The State Criminal Appeal No. AAU0001 of 2005S.

[9] At para 14 of the sentencing remarks the learned judge said:

"I am, in the circumstances, inclined to pick up a starting point of 14 years for the sentence in this case to reflect that the victim is very small compared to those in the two cases referred to above. I add four years for the considerations in paragraphs 10 and 11 above, which I consider as seriously aggravating circumstances to enhance the sentence to reach 18 years."

[10] The learned judge dealt with the aggravating factors at paragraphs [10] and [11] as follows:

"Learned counsel for the State and for the accused accepted the above range of sentence for the rape of children. They also addressed court on aggravating and mitigating circumstances in order to assist court in regard to the imposition of an appropriate sentence on the accused. I have considered their submissions very carefully in light of the provisions of the Sentencing and Penalties Decree in determining the sentence.

The victim in this case was only four years of age at the time of the incident. She was just stepping into her formative ages and moving around playing. The accused, who was fifty, had three grown up children, two of them were married. The accused had four grandchildren from the two married daughters out of whom two were in or about the same age as that of the victim. There cannot be any doubt that the accused, in the circumstances, knew the value of children and that they needed protection and shelter from adults. Despite that the accused raped the little girl, who was in the age group of his grandchildren to satisfy his unnatural lust."

[11] It is clear that the learned judge based his high starting point of 14 years imprisonment on the tender age of the victim. He then used the same fact (i.e. the age of the victim) as an aggravating factor to enhance the appellant's sentence by 4 years. There is an arguable ground that the appellant was punished twice based on the same fact.

Result

[12] Leave to appeal against conviction is refused.

[13] Leave to appeal against sentence is granted.

....................................
Hon. Justice D. Goundar
JUSTICE OF APPEAL